Disputed immigration provision requires link to national security, Supreme Court says

2023/09/29 Leave a comment

Of note:

A provision of federal immigration law can be used to bar people on security grounds for engaging in violence only when there is a clear connection to national security, the Supreme Court of Canada has ruled.

The decision came Wednesday in a judgment on two cases that began with administrative rulings under a section of the Immigration and Refugee Protection Act.

The section of the law says permanent residents or foreign nationals are inadmissible on security grounds for engaging in acts of violence that could endanger the lives or safety of people in Canada.

The first case involved Earl Mason, a citizen of Saint Lucia, who came to Canada in 2010 and later applied for permanent residence with his wife’s sponsorship. In May 2014, Mason was charged with two counts of attempted murder and two counts of discharging a firearm after an argument at a bar in Surrey, B.C. The charges were stayed due to delay.

In the second case, Libyan citizen Seifeslam Dleiow arrived in Canada in 2012 on a study permit and later unsuccessfully applied for refugee status. A Canada Border Services Agency report alleged he had engaged in acts of violence against intimate partners and others.

Some charges were stayed, and he received a conditional discharge after pleading guilty to being unlawfully in a dwelling house with intent to commit an indictable offence, mischief under $5,000 and uttering threats.

In Mason’s case, the Immigration Appeal Division agreed with the immigration minister that the section of the immigration law in question applies even when there is no nexus with national security. In Dleiow’s case, the Immigration Division followed the appeal division’s interpretation.

As a result of these administrative rulings, both men were deemed inadmissible to Canada.

The Federal Court quashed the rulings, but the Federal Court of Appeal concluded the administrative interpretation of the immigration provision was reasonable. The men then took their cases to the Supreme Court.

In its decision, the top court rejected the Immigration Appeal Division’s reading of the provision and overturned the administrative rulings.

In writing for the majority, Justice Mahmud Jamal said the relevant legal constraints “point overwhelmingly to a single reasonable interpretation” of the immigration provision — a person can be found inadmissible to Canada only if they engage in acts of violence with a nexus to national security.

Jamal said the Immigration Appeal Division failed to address critical points of statutory context that Mason had raised as well as “the potentially broad consequences of its interpretation,” namely deportation from Canada.

In addition, he wrote, the appeal division failed to apply the section in keeping with international human rights obligations concerning refugees to which Canada is a signatory.

Justice Suzanne Cote would have applied a different legal standard of review to the case, but agreed that there must be a link between the relevant act of violence and national security.

She found the Immigration Appeal Division’s interpretation would have significantly expanded the grounds for deportation of foreign nationals or permanent residents.

“It would allow foreign nationals to be returned to countries where they may face persecution, in a manner contrary to Canada’s obligations under the Convention Relating to the Status of Refugees.”

Source: Immigration law provision can bar people with link to national … – CTV News

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Barutciski: Canada’s overly inclusive definition of ‘immigrant’ threatens to upset the apple cart 

2023/08/29 Leave a comment

Fully agree with need to include temporary residents in the annual levels plan but no need for the government to await an amendment to IRPA: in the interim, the government could decide to do so on its own volition if inclined to do so and be more transparent about actual levels of immigration.

Likely inertia will prevail, nothing will be done by the government and no amendment to IRPA will come before Parliament. Happy to be proven wrong…:

That Canadians have been debating aspects of immigration policy this summer is, on its own, unusual. After years of record-setting admission numbers, systemic problems such as the generalized housing shortage and the surge of homeless asylum seekers have prompted debates about whether the number of admissions is too high – though admirably, Canada’s traditional widespread openness and commitment to immigration remains unquestioned. But what’s also unusual is the way we are talking about immigrants, because official and media sources have presented the yearly number of immigrants to the country in a way that hasn’t been as clear and upfront as possible about recent changes in immigration policy.

In the past, the term “immigrant” was generally used to designate permanent residents who had been admitted to the country. As a consequence, Canadians had grown accustomed over the past few decades to hearing that their country was admitting roughly 200,000 to 400,000 immigrants a year. In March, however, then-immigration minister Sean Fraser announced that Canada had brought in a million new immigrants in the previous year. While the sudden huge increase was largely unexplained, careful observers figured it out: the new statistics included temporary residents, such as international students, along with the usual permanent resident numbers.

This has stemmed from an explosion in the granting of temporary resident permits since the Liberals came to power in 2015. The Liberals were also still able to issue a large number of permanent-resident permits during the COVID-19 pandemic, when the borders were closed, by relying on the selection of temporary residents who were already in Canada. This approach is becoming the new way of selecting many of the country’s permanent residents.

In other words, temporary migrants already have become a significant part of the country’s immigration policy; the data has just caught up with that reality. The problem is that nobody has actually explained this major change to the host population. The implications need to be discussed openly and honestly, and it is impossible to do so if the relevant information is not made public.

According to s. 94 of the Immigration and Refugee Protection Act, the immigration minister is supposed to provide Parliament with a report that explains many details focusing on the permanent residents who are admitted every year. This provision is now incomplete given this shift in reporting basic statistics. Parliamentarians should amend the legislation so that Canadians can be properly informed not only about permanent residents, but also temporary residents.

All opposition parties should push for this amendment. The Liberals have somewhat downplayed their role in the evolving language, maintaining that temporary permits depend on demand from employers and postsecondary institutions. Yet the federal government ultimately controls the authorization and issuance of visas. If employers looking for cheap labour and cash-strapped educational institutions really are able to guide the country’s immigration policy based on their own narrow interests, that would disregard the implications for the rest of the country.

There seems to be an ideological dimension to the shift, and it has been implemented in a way that goes beyond the traditional consensus amongst Canadians. When she was foreign affairs minister, Chrystia Freeland illustrated this vision when she rushed to Toronto’s Pearson Airport in 2019 to greet the newly arrived asylum seeker Rahaf Mohammed. Her characterization of the Saudi teenager that day as a “brave new Canadian” was technically premature if we go by the country’s Citizenship Act. Some have similarly started to refer to asylum seekers as “newcomers,” even though in most cases, their ultimate status and right to remain in Canada is unknown. This generous use of inclusive terminology regarding community membership is not understood by average Canadians, and threatens to upset the informal agreement that positively informs our politics: that immigration enriches Canada.

All these changes to Canada’s immigration policy may represent potentially interesting new ideas, but they need to be clearly presented and debated to keep the public on board. Marc Miller, who took over for Mr. Fraser as Immigration Minister in July, would be wise to proceed cautiously and reassure Canadians that their country is not being transformed too quickly by the improvised and ad hoc application of new concepts. The place of temporary permits in the overall immigration scheme provides one important example where recent developments need to be properly scrutinized. An amendment to Canada’s immigration legislation is needed to make sure this happens.

Michael Barutciski is a faculty member of York University’s Glendon College. He teaches law and policy with a focus on migration issues.

Source: Canada’s overly inclusive definition of ‘immigrant’ threatens to upset the apple cart

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From adaptability to vulnerability: Changes in admission criteria and refugee participation in social assistance

2022/03/28 Leave a comment

The Toronto Sun headline, as typical, spins the study with the header Canada’s immigration laws deter economic independence among some refugees whereas the article is more nuanced in how it characterizes the change, a valid change to address humanitarian objectives. And as the study notes, the gap decreases over time:

The 2002 Immigration and Refugee Protection Act (IRPA) replaced the Immigration Act, 1976 as the primary legislation guiding immigration in Canada. It marked a major policy shift—from an emphasis on adaptability to vulnerability—in the admission of resettled refugees. Prior to the IRPA, those awarded refugee status had to demonstrate their capacity for economic independence in Canada. This would normally be within a year after arrival and would consider age, educational attainment, skills, presence of family members and other factors. The IRPA significantly altered Canada’s refugee priorities by committing to admission on humanitarian grounds and prioritizing those in need of protection (Immigration, Refugees and Citizenship Canada, 2016; Lu et al., 2020).

Changes in selection policy had a particular impact on the characteristics of government-assisted refugees (GARs). For example, prior to the IRPA (1997 to 2001), 53% of newly admitted GARs had less than a high school education. However, this percentage increased to 74% among GARs who arrived after the IRPA (2005 to 2009). The share of lone-parent GARs also increased from 6% in the pre-IRPA cohort to 12% in the post-IRPA cohort. Because of these changes, refugees admitted after the IRPA may be more prone to relying on social assistance than those who arrived before the IRPA. This is less likely for privately sponsored refugees (PSRs) who are more likely to have family or friends in Canada and are better positioned to find employment through their sponsors or familial networks.

A recent article published in International Migration compared the long-term use of social assistance among resettled refugees arriving under pre-IRPA guidelines (1997 to 2001), during the transition period (2002 to 2004), and after the IRPA (2005 to 2009). Authors Lisa Kaida (McMaster University), Max Stick (McMaster University and Statistics Canada) and Feng Hou (Statistics Canada) used the Longitudinal Immigration Database to determine whether resettled refugees arriving after the introduction of the IRPA were more likely to rely on social assistance than earlier cohorts. The analysis examined GARs aged 20 to 54 at landing. The social assistance rates among PSRs were also calculated for comparative purposes.

Chart 1 displays the social assistance rates of resettled refugees (GARs and PSRs) admitted during the three periods. The social assistance rate is defined as the percentage of refugees whose family received social assistance income in a specific tax year. The results show that two years after landing, transition-period (71%) and post-IRPA (72%) GARs received social assistance at higher rates than pre-IRPA (66%) GARs. In contrast to GARs, pre-IRPA PSRs had higher social assistance rates (33%) than transition-period (30%) and post-IRPA (28%) PSRs in year 2.

While the social assistance rates of GARs dropped each year after landing, the rates for transition-period and post-IRPA GARs declined more slowly than those for the pre-IRPA cohort. The gap in social assistance rates between pre-IRPA and transition-period GARs continued to widen until year 8 (14 percentage points). The gap between the pre- and post-IRPA cohorts peaked in year 5 (16 percentage points).

After year 8 (for the transition-period cohort) and after year 5 (for the post-IRPA cohort), the gap in social assistance rates narrowed between these cohorts and the pre-IRPA cohort. By year 10, the difference in social assistance rates between the pre-IRPA cohort and the other two cohorts fell below 10 percentage points. Labour market characteristics of transition-period and post-IRPA GARs, especially their lower employment rates compared with pre-IRPA GARs, largely explained the differences in social assistance rates.

Social assistance rates of PSR cohorts slowly declined up to years 5 and 6, and then hovered at around 20% to 25% until year 10. The difference in social assistance rates between pre-IRPA, and transition-period and post-IRPA PSRs remained small from years 3 to 10.

The findings suggest that GARs arriving after the introduction of the IRPA took longer to integrate into the Canadian labour market and become economically independent than those arriving prior to the IRPA. However, transition-period and post-IRPA GARs started to close the gap with their pre-IRPA counterparts five to eight years after arrival. By the 10th year, their rates of social assistance decreased to 35%.

Source: From adaptability to vulnerability: Changes in admission criteria and refugee participation in social assistance

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Ottawa needs to build on recent immigration reforms

2016/03/21 Leave a comment

Michel Beine, Robin Boadway and Serge Coulombe, authors of the C.D. Howe Institute publication, Moving Parts: Immigration Policy, Internal Migration and Natural Resource Shocks, argue for a return to the human capital approach to immigration, as per the original policy rational behind IRPA in 2001:

Finally, the new permanent immigration policy prioritizes skills in demand. That preference may decrease the immigration of workers whose skills may be more important in the longer term. The government should address these potential negative consequences as it plans its reforms. Immigration Minister John McCallum recently said he will adjust the express-entry system to facilitate the entry of recent international graduates of Canadian universities into the permanent immigration system. This fixes one of the unintended consequences of the previous government’s reforms.

More consideration should be given to attract immigrants with skills the Canadian economy may need in future, while in less demand today. And the government should continue to promote economic opportunities for Canadian residents seeking employment in their own province or moving to other provinces in search of better opportunities. That could mean policies such as reforming EI to encourage workers to move where the jobs are, or introducing more competition in the airline market to ease travel within Canada.

Canada has historically had an immigration system driven by evidence, not political dogma. The new government should continue with that approach and build on its predecessor’s immigration reforms to help both existing Canadians and businesses that need workers.

Source: Ottawa needs to build on recent immigration reforms – The Globe and Mail

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